Barack Obama’s request for a formal Congressional authorization to use military force (AUMF) against the Islamic State has produced the most amazing responses. Everyone seems to be switching sides, and one cannot tell the players without a scorecard.
Senate Armed Services Committee Chairman John McCain went from earlier introducing a new War Powers Act requiring the president consult with Congress if he plans military action lasting more than seven days to saying, “To restrain [the president] in our authorization of him taking military action, I think, frankly, is unconstitutional and eventually leads to 535 commanders in chief.” Ranking Foreign Relations Democrat Robert Menendez went from introducing a more restrictive AUMF in December to supporting the president’s broader authority now.
For the past several months, as the Islamic State or ISIL has expanded from Syria into Iraq and created a large non-state “caliphate,” the U.S. has responded with air strikes to blunt its advances. The president had argued that he was already authorized to respond by an AUMF enacted in the wake of the 9/11 attack in 2001 that gave him power to use:
all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Both parties had argued this was inadequate and requested the president submit a new AUMF that specifically covered ISIL. Now, neither side is sure they want one. The leftist Huffington Post fumed that Obama’s proposal represented a “rubber stamp for his perpetual war.” Coming from the opposite side, the rightist Real Clear Politics complained that the president’s new AUMF actually “prohibits him from using force” and will bind his successors from taking necessary military action.
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Criticism was widespread because Obama’s proposal is quite vague. First, it did not revoke the 2001 AUMF. It did not even claim a new authorization was necessary to continue fighting ISIL, or that the earlier authorization could not still allow even greater force in the future. Does this mean that any limitations in the new version could be overridden by the earlier version? Does it mean that if the new version is approved and expires in 2018 that an ISIL war could continue afterwards under the earlier version? Or could the president’s general commander-in-chief powers override both AUMFs? If so, why is a new authorization necessary at all?
Second, the new proposal “does not authorize the use of the United States Armed Forces in enduring offensive ground operations.” This was proposed to satisfy the majority in the Senate opposed to using ground forces. But what does “enduring” mean? What is offensive as opposed to defensive action? Third, besides allowing military force against ISIL, it also authorizes action against “associated persons or forces’’ defined as “individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor.” What is “closely-related”? As ISIL is supposedly close to al-Qaeda under the 2001 version, even though the two forces have now formally separated and even fight each other?
Former Attorney General Michael Mukaesy (and David Rivkin) support McCain in arguing that the Constitution forbids Congress from restricting the president on military policy: “Congress cannot restrain the president’s core authority to wage war, even when congressionally-imposed restrictions are minor.” Mukaesy claims, “The Founders were careful to vest responsibility for waging war in a unitary executive, rather than a multi-member legislature.” Of course, this former attorney general knows the Constitution did give Congress the power to “raise and support armies,” “provide and maintain a navy,” and “declare war,” and that the “careful” vesting in the president is merely as its “commander in chief” without any specifics.
Former Assistant Attorney General Jack Goldsmith responded: “Some of Congress’s very first authorizations of force, in the quasi-war with France in the 1790s, authorized the President to use only limited military means (U.S. armed vessels) against limited targets (certain French armed vessels). The Supreme Court recognized these limits in Bas v. Tingy.” Indeed as Goldsmith and Curt Bradley argued, “most authorizations to use force in U.S. history have been of this limited or partial nature. (For more on the constitutionality of this longstanding practice, see the evidence and arguments in this article by Barron and Lederman).”
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Even the normally coolheaded seem flabbergasted by recent ISIL and other extremist attacks. To make the case that these are no longer “normal times,” Daniel Henninger cites ISIL’s beheadings in Iraq, its immolation of a Jordanian pilot, and also its Libyan offshoot beheading 21 Egyptian Coptic Christians, Nigeria’s Boko Haram’s capture of young women with its murders spilling into Niger and Chad, terrorist acts and anti-Semitism in France and Denmark, and Russian aggression in Ukraine. He criticized President Obama for his decision “not to deploy American resources” in his “thought-out, brutal and unapologetic” policy that ignores the international environment only so that he can institute a leftist domestic agenda in the United States.
While understanding his frustration, can Obama’s foreign policy really be described as not deploying American resources when he proposes a defense budget of $585 billion for the coming year? He is managing a major drone and air-centered antiterrorism policy in Iraq, Afghanistan, Syria, and elsewhere. As Huffington Post’s Marjorie Cohen stated from an opposing perspective: “Obama has launched 2,300 airstrikes in Iraq and Syria since August 8, 2014. In his six years as president, he has killed more people than died on 9/11 with drones and other forms of targeted killing in Pakistan, Yemen and Somalia — countries with which the United States is not at war.”
Moreover, coalition commander Lt. General James L. Terry believes the current limited strategy against terrorism is working. President Obama’s policies certainly can be questioned, but how do they relate to the atrocities Henninger and the public are rightly concerned about? Could they have been avoided by the most active policy imaginable, including occupation of all nine nations mentioned? Even holding local leaders accountable with their lives cannot force weak and dysfunctional governments to control their angry and divided populations.
ISIL’s despicable acts should not panic the West to run off in all directions without a rational plan. The continuing problems in Iraq and Afghanistan after such great human and material cost over so many years should give one pause. So should Atlantic editor Graeme Wood’s warning that ISIL’s plan is to draw the U.S. further into the morass.
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A serious Congressional debate on a new AUMF provides a real opportunity to move from emotion to serious thinking about U.S. interests and what can and should be done about advancing them in this very complex and dangerous world.
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